Reference by His Majesty’s Attorney General under Section 36 Criminal Justice Act 1988: Lorna Elizabeth Dennington & Anor

A sentence is unduly lenient if it falls outside the range reasonably open to a judge who has considered all relevant factors and the applicable sentencing guidelines. A court must apply a relevant Sentencing Council guideline unless that would be contrary to the interests of justice.

Where offences concern several victims, a guideline framed by reference to one offence and one victim must be applied so that the sentences and overall total reflect the full offending. A late guilty plea normally attracts only the guideline reduction. Avoiding evidence at trial does not justify a greater reduction where the victims have already been required to attend court expecting to testify. Consecutive sentences must be adjusted, where necessary, to secure a proportionate total.

The two offenders pleaded guilty at trial to child-cruelty offences concerning three children. The second offender also pleaded guilty to fraud after dissipating most of a trust fund intended for one of the children.

A Recorder imposed total sentences of 12 months’ imprisonment on each offender. The Solicitor General sought leave under section 36 of the Criminal Justice Act 1988 to refer the sentences as unduly lenient. The reference challenged the categorisation of the child-cruelty offending, the treatment of multiple victims, the guilty-plea reduction, and the fraud sentence.

The central issue was whether the sentences fell outside the range reasonably open under the applicable guidelines.

Disposition

The court granted leave for the reference and held that both total sentences were unduly lenient. It quashed them and substituted substantially longer custodial sentences.

1. Applying the test in Attorney General's Reference No 4 of 1989, [1990] 1 WLR 41, the question was whether the sentences fell outside the range reasonably open to a judge who had considered all relevant factors and applicable guidelines. The several errors identified by the Solicitor General satisfied that test.

2. The child-cruelty offences involved the highest level of harm. In the first offender’s case, there were features of both medium and high culpability. A Category B1 offence carried a starting point of three years’ custody, with upward movement for high-culpability features. Since there were three victims and three offences, the court had to impose sentences which reflected the totality of the offending, rather than treat the single-victim guideline range as determinative.

3. For the second offender, wilful neglect required the mental element explained in Sheppard, [1981] AC 394: actual knowledge of the relevant facts or indifference as to whether they existed. His guilty plea had to be treated as an admission that he wilfully neglected the children. His lesser role nevertheless justified a lower sentence than the first offender’s.

4. The Recorder was required to apply the Sentencing Council guideline on reduction for a guilty plea unless it was contrary to the interests of justice. Pleas first indicated at trial attracted a maximum reduction of 10 per cent, absent an applicable exception. Giving a greater reduction because the pleas spared the victims from giving evidence was contrary to the guideline’s principles, particularly as the victims had already attended court expecting to testify.

5. The fraud was properly Category 3A and required an uplift because of its serious effect on the beneficiary. A consecutive sentence was inevitable. The court reduced the otherwise appropriate fraud term only to secure a proportionate overall total, given its connection with the psychological harm caused by the wider offending.

6. The substituted sentences were four years and 10 months’ imprisonment concurrently on each child-cruelty count for the first offender. For the second offender, the court imposed three years’ imprisonment for the child-cruelty counts and a consecutive three years for fraud, making six years’ imprisonment.

• Court of Appeal (Criminal Division) — granted leave under section 36 of the Criminal Justice Act 1988, held the sentences unduly lenient, quashed them and substituted longer sentences.
• Crown Court — on 6 September 2022, imposed total sentences of 12 months’ imprisonment on each offender.